WHY STATE GOVERNMENT DISLIKES FIRST AMENDMENT
What Rights do you have
South Dakota government is attempting to limit newspaper distribution to those with popular views and deep pockets. Citizens need to know what their government is doing and their very knowing acts to restrain government from running rough shod over citizens rights. A society that restricts a free press, shoots itself in the foot.
That is why our forefathers considered the free press so important a key to maintaining our freedoms. They made it the "First Amendment" to the constitution.
Newspapers in South Dakota have been in rapid decline and what information and views you get wound up in the hands of the few. Now South Dakota officials want it narrowed further.
Our forefathers put it in writing - "you shall make no laws restricting the free press." South Dakota has never the less implemented a law that severely burdens narrow interest, low circulation, state-wide publications with horrendous bookkeeping costs that destroy the feasibility of continuing circulation of the publication in South Dakota.
The state burdening and taxing a newspaper out of business is no different than censoring what views a South Dakota citizen can access and read.
A Sioux Falls Publisher has been convicted as a criminal felon for standing up to this South Dakota governmental excess by making the same constitutional rights claims that have been upheld in 25 years of distributing in 9 other states.
The South Dakota state court system here, however, has ruled South Dakota officials can burden any class of publication out of business in South Dakota they want and that constitutional traditional protections are dead in South Dakota.
The Sioux Falls publisher faces up to 2 years in jail at a May 8th sentencing for refusing to have his newspaper, SOLO RFD go out of business in South Dakota when ordered to do so by state officials . . .
The Publisher claims SD tax on newspaper sales are unconstitutional. Under the First Amendment, courts have ruled that sidewalks are the most protected area and open to all to distribute printed material, including newspapers, you can hand out literature, and even make a speech without permission, license or paying any government a fee, a tax or tribute of any kind to use the public sidewalk for such protected activities. No governmental agency has ever been allowed by the courts to make a profit on restricting such activity on the public forum sidewalk.
Solo RFD, a Sioux Falls published newspaper for the unmarried and an associated paper have been distributing newspapers almost solely on sidewalks for 25 years and are now distributed in 9 states. In the 25 years of distribution over 70 governmental entities have tried to extort license fees, a percentage of sales and other financial burdens on the newsracks. In the last 2 years alone, 6 cities in 3 states have tried to collect sales tax, but when confronted with the First Amendment constitutional issued by the publisher, all have dropped their demands. Over 25 years the publisher has been forced to go to Federal Court 16 times and to enforce such protected constitutional rights on sidewalks including going all the way to the U.S. Court of Appeals 8 times. Primarily as a result of the constitutional protections upheld by the Federal Court system, Solo RFD newspaper does not pay anyone a tax nor take out a license anywhere in the 9 states. In 1995, two Kansas towns each threw the Solo RFD publisher in jail for refusing to get a license and pay their town a tribute for the right to distribute on the sidewalk.
After the publisher took them to federal court (without an attorney) and it was finally apparent they would lose, both settled out of court for $8,000 each, despite both hiring the same big Kansas City attorney who was supposed to be an expert on overriding First Amendment rights by government agencies.
The South Dakota Attorney Generals office ruled a few years ago sidewalks in SD rest stops werent open to First Amendment newspaper distribution as they were in all other states. They seized one of Solo RFDs newspaper racks in violation of First Amendment and Fourteenth Amendment (due process) rights.
SOLO RFDs publisher went to Federal Court without an attorney and got a court order overturning the SD Attorney Generals ruling. The state office has been trying for 2 years to get that federal court ruling overturned. Instead, the US Court of Appeals ruled March 24, 1997, "we conclude the state statutes are unreasonable, and affirm the district courts ruling that the statutes are unconstitutional as applied to Jacobsen." Their legal prowess embarrassed, they have been looking for other ways to get Solo newsracks out of SD rest stops and retaliate.
Recently when SOLO RFDs publisher notified the state of SD Tax Department he wasnt going to RENT-A-RIGHT and pay a tribute (sales tax) to SD for what is a constitutionally protected activity in all other states, the attorney generals office jumped at the chance to close down SOLO RFD with some "big gun" lawyering, retaliate and get those Solo newsracks off the rest stop sidewalks.
Newspapers are and can be taxed like anyone else, however a tax based solely on circulation is not constitutional. (SD Newspaper Tax is solely circulation) and certainly never on public forum sidewalk sales. Other papers get 10% or less from sidewalk sales. SOLO RFD is nearly all sidewalk sales. Any regular tax on newspapers must burden all equally. Here the bookkeeping burden is severe for a small paper distributing in wide areas, small sales in a large number of towns.
The Solo RFD tax for February would have been $15.60; however, the bookkeeping would be over $200 since separate tax rates in numerous towns must all be calculated separately and requires nearly 300 separate entry efforts. If a regulation destroys a publication as it does here it is unconstitutional. Any burden must be nondiscriminatory. Distributed free, shopping newspapers have large income and pay no tax at all. Large daily newspapers can pass the tax to 90% of circulation customers in the stores or routes, etc. ... Solo RFD, all sidewalk income has to absorb the tax since nearly all is newsrack based. With 100s of times the bookkeeping burden, the tax is easily proven to be discriminatory against a small publisher, covering a wide area.
Ordered to go out of business or face up to 2 years in jail, Solo publisher again took considerable risk, refused to give up his rights and went with constitutional rights holding up and being as good in SD as elsewhere.
Since the SD Attorney Generals office was an embarrassed loser in a Federal court action with SOLO RFD publisher, acting without a lawyer in a Federal Court and in U.S. Court of Appeals, over SD sidewalks in 1995 they apparently wanted this action to not be heard in Federal court where constitutional rights are upheld. Apparently feeling the Attorney Generals office could put SOLO RFD out of business in a State court more easily.
When the SOLO RFD publisher went to federal court over this to seek enforcement of constitutional protection, the attorney generals attorney filed papers under a comity rule that says basically once the state has indicted you as criminal under tax laws the Federal Court cannot rule on constitutionality. Dismissed and locked out of Federal Court on legal maneuvering, Solo publisher has had to endure State court.
In September, Solo RFDs publisher received correspondence from the state tax attorney Weber, that the attorney considered the states sales tax constitutional but any tax that failed the following criteria would be constitutionally suspect: 1. Based on circulation (SD tax is 100% on circulation) 2. Treats newspapers different that other businesses (it does; other businesses are taxed on total receipts) 3. Treat all newspapers non-discriminatory (small publisher in SD has several hundred times the bookkeeping cost of dailys and since sold solely by newsracks must absorb the tax) 4. It cannot make the distribution economically unfeasible (it prices SOLO out of business) The final paragraph asked the publisher to contact the writer for further discussion of the law. Three days later in response, SOLO pointed out these discrepancies above in the states position that from their own statement would be unconstitutional. SOLO requested information on any similar lawsuits that took up sales tax on sidewalk newspaper sales and upheld the states position. SOLOs legal search had been unable to find any that did. The tax attorney Weber, apparently couldnt find any either and never responded, instead 10 days later the state attorney took the revocation and indictment action and other procedures that locked SOLO out of Federal Court constitutional review.
Solo RFD though published in Sioux Falls, SD, went to court in Sioux City, Iowa over $10 monthly tribute that Iowa state D.O.T. required to use rest stop sidewalks, the Federal Court brought up the following Supreme Court ruling as a factor in his decision against the $10 tax. "a state may not impose a charge for the enjoyment of a right granted by the Federal Constitution...The power to impose a license tax on the exercise of (First Amendment) freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down." Murdock vs. Pennsylvania.
Newspaper sales on sidewalks are a constitutionally protected activity and have been repeatedly so ruled by the Supreme Court. A tax on sales is a restriction that prices out unpopular views and restricts the ability to distribute views to only those with popular views and "who can pay". Solo has faith the First Amendment is as applicable in SD as it is in other states even if the SD legal and justice system do not.
Another court ruling that applies:
"A tax that burdens rights protected by the First Amendment cannot stand unless the burden is necessary to achieve an overriding government interest." Minneapolis Star and Tribune Co. vs. Minnesota Commissioner of Revenue.
The above quote comes from the very case that the state court has said allows the state of SD to tax "burden" SOLO out of business. The state considers the under $25.00 a month tax revenue more important (overriding) then honoring traditional constitutional rights protecting newspaper sales on public sidewalks honored in other states.
Both the state tax director and the state judge have decided the State of South Dakota not only has the power to tax what is normally a constitutionally protected activity, they have the power to destroy the activity. In the trial the state judge having already ruled on it, would not allow the defendant to bring up constitutional rights. The jury was instructed that if they found the defendants newspaper had continued in business in South Dakota, they were required to find him guilty, which they did in 15 minutes.
SOLO publisher Harlan Jacobsen on March 11th was found guilty as a criminal and sentencing has been set May 8.
1. The only state in the U.S. to ever order a newspaper publisher to stop doing business, (publishing and distributing newspapers on public sidewalks) or be convicted as a criminal felon. Sounds like South America?
2. The only states Attorney General to rule constitutional First Amendment rights to distribute flatly do not apply on Rest Stop Sidewalks. Federal Court overruled.
3. The only state court in the union to ever actually convict a newspaper for failing to go out of business when ordered to by the state government.
4. The only state in the union to ever convict a newspaper publisher as a criminal felon fur refusing to pay a tribute to the state for engaging in the constitutionally protected right to distribute newspapers on the public sidewalk.
5. The only state in the union to change the constitutionally protected selling of newspapers on the traditional public forum, making all sidewalks in SD a "RENT A RIGHT". Get permission (license) and pay a monthly tribute or rent to the state to enjoy this right.
6. The only state in the union that limits newspaper distribution to those with popular views and deep pockets and can pay a tribute. Those with less popular views and less deep pockets are denied access to distribution by the state "pricing them out".
We are not asking you to do anything. Under our "free press" rights we just want you to be informed about your state government.
CONVICTED "CRIMINAL PUBLISHER" HARLAN JACOBSEN IS SCHEDULED TO BE SENTENCED IN STATE COURT MAY 8. For a copy (mailed or faxed free) call (605) 335-4125.
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